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Changes to employment laws from the Jobs and Skills Summit are imminent – Employee Rights/ Labour Relations



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The Federal Government has announced the actions that will be
taken from the Jobs and Skills Summit. This article focuses on
those actions that will result in changes to employment laws. As
expected at this stage of the process, the changes identified are
general in nature and will be fleshed out as the reform rolls
out.

The changes that will be made include:

  • update the Fair Work Act 2009 (Act) to create a
    simple, flexible and fair new framework that ensures all workers
    and businesses can negotiate in good faith for agreements that
    benefit them, including small businesses, women, care and community
    services sectors, and First Nations people;

  • legislate a statutory equal remuneration principle to improve
    the way pay equity claims can be advanced under the Act;

  • importantly, legislating same job, same pay;

  • limit the use of fix term contracts (which will increase the
    access of affected employees to unfair dismissal laws);

  • prohibit pay secrecy clauses, and give employees a right to
    disclose their remuneration;

  • amend legislation to give workers the right to challenge unfair
    contractual terms;

  • set an objective test in the Act for determining when a worker
    is casual. (There is no mention made of changing the test for
    determining who is an independent contractor);

  • extend the powers of the Fair Work Commission to include
    “employee-like” forms of work, allowing it to make orders
    for minimum standards for new forms of work, such as gig work;

  • ensure workers and businesses have flexible options for
    reaching enterprise agreements, including removing unnecessary
    limitations on access to single and multi-employer agreements
    (echoing the accord reached before the Summit between the ACTU and
    the Council of Small Business);

  • helpfully, allow businesses and workers who already
    successfully negotiate enterprise-level agreements to continue to
    do so;

  • remove unnecessary complexity by making the Better Off Overall
    Test simple, flexible and fair (thereby making enterprise
    agreements more attractive for employers);

  • give the Fair Work Commission the capacity to proactively help
    workers and businesses reach agreements that benefit them,
    particularly new entrants, and small and medium businesses;

  • restrict the process for enterprise agreement terminations and
    sunset so called ‘zombie’ agreements’

  • ensure workers have reasonable access to representation to
    address genuine safety and compliance issues at work;

  • establish a right to superannuation in the National Employment
    Standards (which will make it easier for workers to recover unpaid
    superannuation);

  • criminalise wage theft;

  • enhance the Act’s compliance and enforcement framework,
    including the small claims procedure, through increasing civil
    penalties for breaches;

  • implement recommendation 28 of the [email protected] Report by
    expressly prohibiting sexual harassment in the workplace and
    enabling the Fair Work Commission to resolve disputes relating to
    workplace sexual harassment (which will be in addition to new
    anti-sexual harassment order jurisdiction);

  • update the Act to:

    • provide greater support for employer bargaining representatives
      and union delegates;

    • provide stronger access to flexible working arrangements and
      unpaid parental leave; and

    • provide stronger protections for workers against adverse
      action, discrimination, and harassment;


  • strengthen existing reporting standards to require employers
    with 500 or more employees to commit to measurable targets to
    improve gender equality;

  • require businesses with 100 employees or more to publicly
    report their gender pay gap to the Workplace Gender Equality
    Agency.

Conclusion

These changes will be just as significant, if not more so, than
the changes to the industrial relations landscape when the Act was
made in 2009. We can expect many of these changes will be made in
the Spring sitting of Federal Parliament, which will make for a
busy lead in to Christmas for HR and IR practitioners.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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